Coverage and commentary continue in Janus v. AFSCME, in which the justices will decide whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment. For The Economist, Steven Mazie reports that during oral argument in the case last week, “[w]hile his colleagues sparred over forced subsidies, free speech and the merits of Abood—which holds that mandatory fees preserve “labour peace” and prevent cheapskates from free-riding on their dues-paying colleagues—Justice [Neil] Gorsuch sat mum.” At Jost on Justice, Kenneth Jost remarks that “[i]f Supreme Court arguments were scored in the manner of high school debate tournaments, liberal justices would be credited with a hands-down win in last week’s showdown.” The Nation offers a conversation “with author and organizer Jane McAlevey about Janus … and the way forward for labor.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Constitution Daily’s We the People podcast features a discussion of United States v. Microsoft Corp., which asks whether the Stored Communications Act allows the government to gain access from email providers to data that is stored overseas. At Wired, David Newman observes that “a ruling for either side will likely add to the pressure on Congress to act by highlighting the extent to which the current framework is badly outdated and in need of revision.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondent in this case.]

For the Tribune News Service (via Governing), Todd Ruger reports on this week’s oral argument in Minnesota Voters Alliance v. Mansky, in which the justices considered whether a Minnesota law banning political apparel at polling places is facially overbroad under the First Amendment, remarking that “[l]eft to figure out what exactly Minnesota’s law would ban, the arguments featured liberal Justice Elena Kagan uttering Trump’s ubiquitous campaign slogan, and conservative Justice Samuel A. Alito Jr. wondering about someone wearing a rainbow flag shirt.” At the Election Law Blog, Rick Hasen has two takes on the case, here and here.

At Take Care, Brianne Gorod argues that the oral argument in Janus v. AFSCME, in which the justices will decide whether an Illinois law allowing public-sector unions to charge nonmembers for collective-bargaining activities violates the First Amendment, included “a lot of empirical questions—but not a lot of answers,” because “those opposed to the unions didn’t bother to develop a record in the lower court that would answer those questions,” and that “[u]ntested assumptions are no basis for overruling a 40-year-old precedent and disrupting carefully calibrated public-sector labor regimes around the country.” Additional commentary on Janus comes from E.J. Dionne in an op-ed for The Washington Post. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case.]

Issue: Whether preference-eligible employees of the Federal Bureau of Investigation may raise whistleblower retaliation as an affirmative defense in proceedings before the Merit Systems Protection Board.

In its conference of March 2, 2018, the court will consider petitions involving issues such as whether a state court’s denial of capital post-conviction counsel’s request for funds to conduct a mitigation investigation constitutes “cause” to overcome procedural default when the denial operated as an objective factor external to the defense, and impeded the development and presentation of an ineffective-assistance-of-trial counsel claim during the state-court proceedings; whether Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled; and whether the U.S. Court of Appeals for the 10th Circuit’s holding—granting qualified immunity to law-enforcement officers who stopped the petitioner from praying silently in her own home because there was no prior case law involving similar facts—conflicts with Hope v. Pelzer, which “expressly rejected a requirement that previous cases be ‘fundamentally similar’” or involve “‘materially similar’ facts.”

Hot on the heels of last week’s blockbuster 10 new relists, we have five new cases this week. Bank Melli v. Bennett, 16-334, involves the scope of the Foreign Sovereign Immunities Act. The court has been holding this case for Rubin v. Islamic Republic of Iran, which presented the same issue, and which the court decided last week. The court must now decide what to do with Bank Melli: whether to grant, vacate and remand for further consideration in light of Rubin, or whether (as Bank Melli advocated) the court should review this case because “[i]t presents a second important circuit conflict” in addition to the one present in Rubin. We’ll know the answer soon.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.